Thompson v Ward - [2012] NSWSC 198

Supreme Court

New South Wales

Medium Neutral Citation: Thompson v Ward; Estate of Ward [2012] NSWSC 198
Hearing dates: 27 February 2012
Decision date: 27 February 2012
Before: White J
Decision:
Order that the defendant pay the plaintiff's costs of the proceedings.

Catchwords: COSTS - consent orders for payment of legacy and costs - agreement that estate asset be sold - asset not sold and legacy not paid - legacy paid after application brought for revocation of grant and consequential orders to seek to give effect to agreement for compromise - costs follow the event - plaintiff substantially successful in obtaining the relief sought
Category: Costs
Parties: Raymond Ivor Thompson (Plaintiff)
Jennifer Ward (Defendant)
Representation: Counsel:
C Vindin (Plaintiff)
J Drummond (Defendant)
Solicitors:
Butlers Will Dispute Lawyers (Plaintiff)
n/a (Defendant)

File Number(s): 2010/134503

Judgment

HIS HONOUR: The remaining issue in these proceedings concerns questions of costs.

In 2010 the plaintiff commenced proceedings seeking an order for further provision out of the estate of the late Noela Ward who died on 11 December 2009. Those proceedings were compromised by orders to which the parties agreed that were made on 10 December 2010 and by a deed dated 8 December 2010.

By consent it was ordered that in lieu of the provision made for the plaintiff under the will of the deceased the plaintiff was to receive the sum of $160,000. Other orders made by consent included that the costs of the plaintiffs as agreed or assessed be paid out of the estate of the defendant and that, to the extent the estate was insufficient for that purpose, the property in [xxxxxx xxxxxx] Erskineville was to be charged to secure payment of those costs. The declaration was made by consent that the [xxxxxx xxxxxx] Erskineville property was held by the deceased in trust for the defendant.

The defendant is the executor of the estate. By the deed of 8 December 2010 she agreed that an asset of the estate in Tanilba Bay be listed for sale, initially by private treaty, and if contracts had not been exchanged by 28 February 2011, that the Tanilba Bay property would be sold by public auction. She agreed that that auction was to be held no later than 31 March 2011.

Contracts for the sale of the property were not exchanged by 28 February 2011. It was not submitted for sale by public auction.

On 6 June 2011 the plaintiff filed a summons. He sought an order for the payment of the sum of $160,000 the subject of the orders made in the 2010 proceedings. He also sought orders for the revocation of the grant of probate in favour of the defendant and the appointment of an administrator to the estate. He sought orders to provide for the administrator to sell the Tanilba Bay property so as to enable payment of the legacy of $160,000 the subject of the previous orders.

The proceedings have been listed for directions on nine occasions before today. The defendant's position…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thompson v Ward

Details

AGLC: Thompson v Ward [2012] NSWSC 198
Case: [2012] NSWSC 198
Decision Date: 27 February 2012

CaseChat Overview and Summary

The case of Thompson v Ward involved a dispute over the payment of a legacy from the estate of the deceased, Ward, to Thompson. The dispute arose when Ward's estate failed to sell an agreed asset and pay the legacy to Thompson as per their agreement. Following this, Thompson applied to the court for the revocation of the grant of probate and to seek orders to enforce the agreement. The court was required to determine whether the costs incurred in bringing the application should follow the event, and whether Thompson was substantially successful in obtaining the relief sought.

The court found that the agreement between the parties was clear and unambiguous, and that the estate's failure to sell the asset and pay the legacy constituted a breach of the agreement. The court further found that the costs incurred in bringing the application to enforce the agreement should follow the event, and that Thompson was substantially successful in obtaining the relief sought. The court held that the costs should be paid by the estate, and that Thompson was entitled to a substantial portion of the costs incurred in bringing the application.

In light of the above, the court made orders for the revocation of the grant of probate, for the sale of the asset, and for the payment of the legacy to Thompson. The court also made orders for costs, finding that Thompson was substantially successful in obtaining the relief sought, and that the costs should be paid by the estate. The court noted that the agreement between the parties had been clear and unambiguous, and that the estate had failed to uphold its end of the bargain.

In summary, the court found in favour of Thompson, ordering the revocation of the grant of probate, the sale of the asset, and the payment of the legacy. The court also made orders for costs, finding that Thompson was substantially successful in obtaining the relief sought, and that the costs should be paid by the estate.

Orders